IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Personal ) No. 77780-7-I Restraint of: ) DIVISION ONE ERIC STEVEN SCHNEIDER, ) ) UNPUBLISHED OPINION Petitioner. ________________________________ ) FILED: October 14, 2019 LEACH, J. — Eric Schneider collaterally challenges his 2014 convictions for
two counts of rape of a child in the second degree—domestic violence, one count
of rape of a child in the third degree—domestic violence, and incest in the first
degree. He asserts his trial counsel provided ineffective assistance because
counsel did not retain a medical expert to respond to the State’s medical expert’s
testimony. But Schneider does not establish that his counsel did not retain a
medical expert. Neither does he show that counsel’s decision not to present a
medical expert’s testimony was an unreasonable trial strategy. So he does not
prove deficient performance. We deny the petition.
FACTS
In 2011, the State charged Schneider with two counts of rape of a child in
the second degree—domestic violence, one count of rape of a child in the third
degree—domestic violence, and incest in the first degree. A jury found him guilty No. 77780-7-1/2
as charged. The trial court sentenced him to life in prison with a minimum term
of 280 months. Schneider appealed his convictions. This court affirmed the
convictions in an unpublished opinion.1 The Washington Supreme Court denied
Schneider’s motion for discretionary review. He now challenges his convictions
with this personal restraint petition (PRP). He asks this court to consider the
record from the direct review proceedings.
We repeat the following facts from this court’s opinion affirming his
convictions on appeal. J.S. was born March 1, 1995, to Elizabeth. In December
2005, Elizabeth married Eric Schneider. Schneider often took care of J.S. and
her two siblings while Elizabeth worked nights.
J.S. reported the following facts in police interviews and trial testimony.
Schneider began sexually abusing J.S. after he married her mother. The first
incident occurred while Schneider and the three children were driving at night to
pick up Elizabeth. After Schneider stopped the car near the woods, he told the
boys to get out and play. He then took J.S. onto his lap and attempted to
penetrate her vaginally. When she told him that hurt too much, he penetrated
her anally instead. Later, again in a vehicle, Schneider raped J.S. vaginally for
the first time after taking her to a father-daughter dance.
1State v. Schneider, No. 71822-3-I (Wash. Ct. App. April 25, 2016) (unpublished), http://www.courts.wa.qov/opinions/pdf/71 8223.rdf.
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J.S. could recall only these incidents in detail. The “rest of the times, they
just blended in.” She testified that the rapes occurred once per week in the
beginning and increased to three or four times per week when she was 14 and
15. Schneider and J.S. also had oral sex. Schneider penetrated J.S. using sex
toys. At other times, he penetrated her with a handgun. He asked J.S. to wear
her mother’s lingerie and high-heeled shoes. He showed her pornography and
asked her to imitate what it showed.
Schneider and J.S. often had sex in vehicles. He also took her to empty
houses under construction and to motel rooms. Schneider also had sex with J.S.
in her parents’ bedroom and her own bedroom and, less often, in the living room.
J.S. described Schneider as being gentle with her at first but violent as
she grew older. He hit her. He put a belt around her throat and held it during
sex. He penetrated her with a sex toy in one orifice while he was penetrating her
in another. After he raped her in the shower, he urinated on her. Once, he
carved his initials on her pubis with a knife, making her bleed. When J.S. told
Schneider she wanted to stop having sex, Schneider told her he would kill her if
she told anyone about the abuse. Schneider also told J.S. he had been “fixed”
so they did not need to use condoms. J.S. reported, accurately, that Schneider
is circumcised.
J.S. stated in some interviews that Elizabeth’s ex-partner molested her
when she was five years old. She told Schneider about this abuse. In 2011,
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Schneider took her to an appointment with a mental health counselor. During the
session, she told the counselor that Schneider had not abused her. J.S. also
spoke to Annetta Spicer, formerly Schneider’s family law lawyer, as part of a
child custody dispute between Schneider and his ex-wife, Jessica. Spicer told
J.S. that Jessica’s sister, AS., had alleged Schneider abused her.
J.S. told her mother about Schneider’s abuse in October 2011. He had
last raped her about two weeks earlier, after he and Elizabeth had separated.
The next week, J.S. reported the rapes during a sexual assault examination with
Nurse Joanne Mettler who testified at trial. Schneider’s counsel did not present a
medical expert at trial. The trial court admitted A.S.’s testimony that Schneider
raped her when she was a young girl. It found that the alleged rapes of A.S. and
J.S. were “markedly similar” and ruled that the State could present evidence of
the earlier rapes to show “a general plan, a design to fulfill [Schneider’s] sexual
compulsions.” A.S. testified at length about Schneider’s abuse.
ANALYSIS
Schneider claims that his trial counsel provided ineffective assistance
because counsel did not retain a medical expert or present expert medical
testimony controverting Nurse Mettler’s testimony. We disagree.
To receive collateral relief by a PRP, a defendant must show either an
error of constitutional magnitude that caused actual prejudice or a
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nonconstitutional error that resulted in a “‘complete miscarriage of justice.”2 An
ineffective assistance of counsel claim alleges a claim of constitutional
magnitude. The Sixth Amendment to the United States Constitution and article I,
section 22 of the Washington Constitution guarantee the right to effective
assistance of counsel to help ensure a fair trial.3
Claims of ineffective assistance present mixed questions of law and fact,
which this court reviews de novo.4 When this court examines an ineffective
assistance claim, it strongly presumes that counsel provided effective
representation.5 To succeed on an ineffective assistance claim, the defendant
must show that (1) his counsel’s performance fell below an objective standard of
reasonableness and (2) prejudiced him.6 Counsel’s performance is deficient if it
was unreasonable under prevailing professional norms and was not sound trial
strategy.7 This court evaluates the reasonableness of counsel’s performance
from “counsel’s perspective at the time of the alleged error and in light of all the
2 In re Pers. Restraint of Grantham, 168 Wn.2d 204, 212, 227 P.3d 285 (2010) (quoting In re Pers. Restraint of lsadore, 151 Wn.2d 294, 298, 88 P.3d 390 (2004)). ~ See State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011); see also State v. Coristine, 177 Wn.2d 370, 375, 300 P.3d 400 (2013). ~ In re Pers. Restraint of Fleming, 142 Wn.2d 853, 865, 16 P.3d 610 (2001). ~ In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1(2004). 6 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). ~ Davis, 152 Wn.2d at 673. No. 77780-7-1/6
circumstances.”8 To establish prejudice, a defendant must show a reasonable
probability that the result of the trial would have been different without his
counsel’s deficient performance.9 “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”1° In a PRP proceeding, a
defendant who shows ineffective assistance has necessarily met his burden to
receive collateral relief.11
Here, the State presented the testimony of Mettler, an advanced
registered nurse practitioner at the Harborview Center for Sexual Assault and
Traumatic Stress. Mettler testified about her credentials, including a bachelor’s
degree in nursing, a master’s degree in maternal child health, and a post-
certificate as a pediatric nurse. She also testified about her extensive
experience. She had been in her current position for 15 years and performed
medical evaluations of children when there are concerns of abuse. Before
working at Harborview, she practiced as a nurse for 15 years in various
capacities, some involving treating patients who were sexually abused. She
testified that she keeps up-to-date with the medical literature relevant to
evaluating and treating sexual abuse patients.
8Davis, 152 Wn.2d at 673 (quoting Kimmelman v. Morrison, 477 U.S. 365, 384, 106 5. Ct. 2574, 91 L. Ed. 2d 305 (1986)). ~ Strickland, 466 U.S. at 694. 10 Strickland, 466 U.S. at 694. ~ In re Pers. Restraint of Crace, 174 Wn.2d 835, 846-47, 280 P.3d 1102 (2012). -6- No. 77780-7-1/7
Mettler stated that she performed a full-body exam of J.S. on November 3,
2011. She used a magnifying tool called a colposcope to check J.S.’s genital
and anal areas. Mettler concluded that J.S. had a “normal genital examination,”
meaning Mettler did not observe any sign of infection, acute injury, or healed
injury. And she did not find any sexually transmitted diseases. She testified that
because a female’s genital area heals “really quickly,” this result did not mean
that J.S. had never had vaginal sex. She explained that the hymen, which sits at
the opening to the vagina, does not “disappear[ ]“ when a woman has vaginal
sex. So the fact that J.S.’s hymen looked “very thick and very wavy and
redundant” is not indicative of an absence of penetration. She testified that a
woman could give birth to two children and have no visible evidence of scarring
or tearing. Mettler explained that 98 percent of the time she finds no evidence of
any kind of injury in the vaginal or anal tissues in patients who claim sexual
abuse. During cross-examination, she stated that although she did not assess
J.S. for “notches,” a V-shape in the hymen resulting from penetration, she has
seen notches in some patients.
Mettler also stated that J.S. had two small anal fissures or tears to the
skin, which generally heal within 48 to 72 hours. Because J.S. told Mettler the
last time she had seen Schneider was a month before her examination, Mettler
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reported that the fissures were not related to any assault that may have occurred
when J.S. last saw him.
Schneider contends that his trial counsel’s decision not to hire or call a
medical expert witness was not a legitimate trial tactic because “[ajny reasonably
competent attorney would have located a medical expert who could testify
regarding these medical findings and the importance of this evidence and Nurse
Mettler’s testimony.” We address the failure to hire an expert witness claim first.
Schneider acknowledges that generally, “the decision whether to call a
witness is a matter of legitimate trial tactics and will not support a claim of
ineffective assistance of counsel.”12 But Schneider emphasizes that the
Washington Supreme Court has stated, “depending on the nature of the charge
and the issues presented, effective assistance of counsel may require the
assistance of expert witnesses to test and evaluate the evidence against a
defendant.”13 And our Supreme Court has noted that in cases of child sexual
abuse, “[t]he most effective types of corroboration . . . are eyewitness testimony,
a confession or admissions by the accused, and medical or scientific testimony
documenting abuse.”14 But this authority does not require that this court
conclude an attorney’s performance is deficient if he or she does not hire a
12 State v. Maurice, 79 Wn. App. 544, 552, 903 P.2d 514 (1995). 13 State v. A.N.J., 168 Wn.2d 91, 112, 225 P.3d 956 (2010). 14 State v. Swan, 114 Wn.2d 613, 622-23, 790 P.2d 610 (1990). -8- No. 77780-7-1/9
medical expert in a child sexual abuse case. Schneider cites no in-state
authority in which a reviewing court concluded that a defendant’s trial counsel
provided ineffective assistance because he or she failed to retain a medical
expert. Instead, he relies on four cases from other jurisdictions; two were
reversed and two are factually distinguishable.
First, he cites Jackson v. Conway.15 There, the United States District
Court held, in relevant part, that Jackson’s trial counsel provided ineffective
assistance because his counsel failed to retain a medical expert witness to opine
on the trauma observed during the victim’s physical evaluation and the
discrepancies of this evaluation.16 But the United States Court of Appeals for the
Second Circuit reversed, holding that Jackson’s trial counsel’s performance was
not deficient because he was operating under the assumption that the State
would not call a medical expert at trial.17 So, counsel refrained from calling a
medical expert for a valid strategic reason, to prevent the State from cross-
examining a defense expert witness.18
Second, Schneider relies on Michael T. v. Commissioner of Correction,19
in which the Connecticut Court of Appeals held, “[Tjhe petitioner is entitled to a
15765 F.Supp.2d 192 (W.D.N.Y. 2011). 16 Jackson, 765 F.Supp.2d at 262-68, 287. 17 Jackson v. Conway, 763 F.3d 115, 153 (2nd Cir. 2014). 18 Jackson, 763 F.3d at 153-54. 19 122 Conn. App. 416, 999 A.2d 818 (2010). -9- No. 77780-7-1110
new trial because his trial counsel was ineffective in failing to present expert
testimony to challenge the state’s expert medical testimony that strongly linked
the child’s trichomonas~20~ to a sexual assault.” The Connecticut Supreme Court
reversed, holding that defense counsel elicited the possibility of non-sexual
transmission during cross-examination, so the defendant did not establish that
any deficiency caused him prejudice.21
Third, Schneider cites a California appellate case, In re Hill,22 in which a
jury convicted Hill of 23 counts of sexual offenses. Hill had the herpes virus and
the victim initially reported 100 to 200 instances of sexual contact with him.23
After trial, Hill consulted a medical expert who stated that it was almost a
statistical certainty that the victim did not have sexual intercourse with Hill 100 to
200 times because she was not infected with the herpes virus.24 The California
Court of Appeals held that Hill’s trial counsel provided ineffective assistance by
failing to present expert testimony about the lack of physical findings and
infection after that many contacts.25 The court additionally reasoned that a
20 “Trichomonas is a parasitic protozoa that can infect the urinary tract or prostate of males and the vagina or urinary tract of females.” Michael T., 122 Conn. App. at 419 n.5. 21 Michael T. v. Comm’r of Corr., 307 Conn. 84, 102-03, 52 A.3d 655
(2012). 22 198 Cal. App. 4th 1008, 1011, 129 Cal.Rptr.3d 856 (2011).
23Ffifl 198 Cal. App. 4th at 1015, 1029. 24 Hill, 198 Cal. App. 4th at 1029. 25 Hill, 198 Cal. App. 4th at 1029.
-10- No. 77780-7-I/Il
defense expert would have supported the victim’s testimony at trial, in which she
recanted her previous allegations of sexual assault.26
Last, he cites Gersten v. Senkowski.27 There, the State presented
uncontroverted expert testimony describing colposcopic evidence as “highly
suggestive of penetrating trauma to the hymen.”28 The United States Court of
Appeals for the Second Circuit affirmed the trial court’s grant of Gersten’s petition
for a writ of habeas corpus based on ineffective assistance of counsel. It
reasoned that because Gersten’s trial counsel failed to call as a witness or even
consult any medical expert on child sexual abuse, “[cjounsel essentially
conceded that the physical evidence was indicative of sexual penetration.”29
Jackson and Michael T. were reversed on the relevant issue, so they are
not persuasive. In Hill, the victim recanted, and there was an exculpatory fact
related to the medical evidence that Hill’s trial counsel did not pursue. That is not
this case. And in Gersten the State’s medical expert presented physical evidence
of abuse and Gersten’s trial counsel did not solicit medical expert consultation or
testimony to controvert it. Here, Mettler testified that she found no physical
evidence of abuse. These cases do not support that Schneider’s counsel
provided deficient performance by not retaining a medical expert witness.
26~fll,198 Cal. App. 4th at 1018, 1029. 27 426 F.3d 588 (2nd Cir. 2005). 28 Gersten, 426 F.3d at 595. 29 Gersten, 426 F.3d at 607-08. —11— No. 77780-7-1/12
Additionally, Schneider’s PRP counsel conceded at oral argument that he
could not establish that Schneider’s trial counsel did not consult with a medical
expert. Mark Vovos, an attorney who Schneider retained to provide an expert
opinion about the performance of Schneider’s trial counsel, stated only that he
reviewed the materials PRP counsel provided; he did not state that he reviewed
Schneider’s trial counsel’s file despite PRP counsel’s representation during oral
argument that PRP counsel had this file.
Schneider also fails to show that his counsel’s decision about presenting a
medical expert was not a legitimate trial tactic. After his trial, Schneider retained
new counsel who consulted with Dr. Stephen R. Guertin, a physician of 35 years.
Guertin’s qualifications include his many duties at Sparrow Hospital in Lansing,
Michigan where he is Medical Director of the Sparrow Children’s Center, Director
of the Pediatric Intensive Care Unit, and a physician member of the Child Safety
Program. In addition, he is an Associate Professor of Pediatrics at Michigan
State University’s College of Human Medicine. He does clinical work in the
areas of general pediatrics, pediatric critical care, and child abuse. After
reviewing J.S.’s and Mettler’s testimony and Mettler’s medical report, he
prepared a report detailing the current research about “remote examinations of
post-pubertal girls claiming that intercourse occurred many times during
prepubertal puberty, and postpubertal period” and his opinions.
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His report summarized a number of studies related to postpubertal vaginal
intercourse, bleeding, and prepubertal vaginal penetration by an erect penis. He
stated that two prominent studies from 1996 and 2004 established that the most
common residual injuries of the hymen after intercourse in teens are
“transections and deep notches of the posterior (lower) portion of the hymen at
3:00 and
9:00. . . . [Ajccording to our current (2015) guidelines[, these indicators] can be
used to support a history of penetrative sexual abuse.” Because Mettler did not
examine J.S. for notches, she made no finding about whether J.S. had notches.
Schneider’s trial counsel cross-examined Mettler about her failure to assess J.S.
for notches without presenting expert witness testimony on the issue. Counsel
asked Mettler a number of questions about notches and she reiterated that she
did not assess for notches. On the State’s redirect examination, the prosecutor
asked Mettler why she did not assess J.S. for notches; Mettler replied, “In
general, I don’t assess for notches in adolescents, or actually even in children
where there’s a report or an indication that there’s been prior penetration.”
Guertin also discussed two studies, conducted in 2009 and 2004, which
did not include all notches as physical evidence of penetration; he opined that
these studies did not include the injuries most commonly sustained during
intercourse in adolescents or use the proper definition of deep notch and or -13- No. 77780-7-1/14
transections. In the 2009 study, only 13 percent of 410 teens who had
experienced penetrative abuse showed physical evidence of penetration. And in
the 2004 study, only 18 percent of 28 pregnant teens showed abnormal physical
indicators. Based on these studies, only 13 to 18 percent of teens alleged sexual
abuse would be expected to have physical findings. Guertin’s report also
discussed two studies concluding that an abnormal examination was
approximately 2.5 times more likely when a report of vaginal bleeding was part of
the allegation. One was the 2009 study in which a positive exam was 2.47 times
greater with a history of bleeding, which means approximately 32 percent of
teens showed physical evidence. These studies are not sufficiently conclusive to
show that Schneider’s trial counsel performed deficiently by not introducing them
through expert testimony. Indeed, some of them strongly corroborate Nurse
Mettler’s opinion about a “normal exam.” This court cannot fault counsel for not
calling an expert who would be forced to admit this on cross-examination.
Guertin additionally discussed anal injury, stating that because anal
injuries heal quickly, “anal injury may be expected up to 63% of the time when. a
sodomy victim is examined within 3 days of the last assault, [and] by 5 weeks
later a normal examination would be predictable.” Guertin opined that an anal
examination done as remotely as J.S.’s “cannot be used to imply that sodomy
had not occurred.” This is consistent with Mettler’s testimony that J.S.’s anal
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fissures were unrelated to any sexual abuse that occurred when J.S. last saw
Schneider. Additional testimony about this issue would have been cumulative.
Last, Guertin’s report focused on the effects of vaginal-penile penetration
on prepubertal girls. Guertin stated studies show that penile penetration in the
vagina of an eight-or nine-year-old girl would be expected to cause a complete
tear or transection of the hymen because the hymen of a prepubertal girl is not
easily stretched. Studies show that although prepubertal transections can heal to
the point of appearing normal, most prepubertal penetration causes tears or
notches in the hymen that persist.
First, although Schneider asserts “it bears noting that the State did solicit
lengthy testimony by [J.S.] about rapes which occurred apparently prior to the
age range of over 12 for those charges actually prosecuted,” he acknowledges
that a discussion about prepubertal penetration “is rendered to some degree
irrelevant by the State’s charging decisions in this case.” Second, Guertin stated
that the penile penetration J.S. experienced started when she was “only 8-9
years old and likely was prepubertal at that time.” But J.S. testified that
Schneider started having sex with her after he and her mother were married,
which her mother testified occurred in 2005 when J.S. was 10 years old. And
J.S. testified that Schneider initially penetrated her only anally because it hurt her
for him to do so vaginally. At 10 years old, J.S. was no longer in the 8-to-9 year
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old prepubertal range that Guertin’s cited studies discussed. Third, the studies
support that a prepubertal girl who experiences transections caused by vaginal-
penile penetration can have a normal examination later on. Finally, as stated
above, Mettler did not assess J.S. for notches, so any study relying on notch
findings would not provide a basis for effective cross-examination or argument to
the jury. For these reasons, Guertin’s discussion about the effects of penetration
in prepubertal girls is not helpful to Schneider.
Based on these studies, Guertin concluded one of four alternative
scenarios occurred. Three of these alternatives rely on J.S. experiencing
prepubertal intercourse, which, as discussed above, is inconsistent with J.S.’s
testimony. The fourth alternative is “Nothing happened to [J.S.’s] genital and
anal areas [because J.S.] is fabricating a story. Parental influence, a desire to
share victimhood or to be one, persistent questioning[,} . . . a vendetta or
exposure to sexual activity or pornography might help explain the story.” But
experts may not state an opinion about a victim’s credibility because such
testimony invades the province of the jury.3° So any defense expert would not
have been permitted to testify about whether he or she believed J.S. was
fabricating her testimony.
30 State v. King, 131 Wn. App. 789, 797, 130 P.3d 376 (2006). -16- No. 77780-7-1/17
We conclude that it was within the realm of sound trial strategy for
Schneider’s trial counsel not to call a medical expert to testify about the
significance Nurse Mettler’s exam or challenge her opinion about the absence of
physical evidence of trauma to J.S. First, Mettler reported that she did not
observe any evidence of trauma, meaning the medical evidence did not
corroborate J.S.’s claims of abuse. Mettler’s testimony that she commonly finds
no evidence of injury in the vaginal or anal tissues in patients who have been
sexually abused did provide medical evidence supporting J.S.’s claim that
Schneider abused her. Second, the studies that Guertin cites measuring
physical evidence of abuse other than notches reported a low incidence of
physical evidence among victims of penetrative abuse. These studies do not
help Schneider. And cross-examination of an expert like Guertin would have
emphasized studies like these. Also, it would have involved questions about the
specific nature of the rapes J.S. described. Schneider’s trial counsel reasonably
could have chosen to avoid these questions to prevent generating sympathy for
J.S. and the reiteration of the gruesome details of the rapes.31
Schneider does not establish through Guertin’s report that his trial
counsel’s decision not to call a medical expert was not a legitimate trial tactic.
31 See Harrinqton v. Richter, 562 U.S. 86, 108, 131 5. Ct. 770, 178 L. Ed. 2d 624 (2011) (“An attorney need not pursue an investigation that would be fruitless, much less one that might be harmful to the defense.”). -17- No. 77780-7-1/18
Because he does not prove deficient performance, we need not examine
prejudice.32 Schneider does not overcome the strong presumption that his
counsel provided effective representation.
We deny the petition.
WE CONCUR:
F a V
32 State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996) (stating if a reviewing court concludes that a defendant fails to establish either prong of ineffective assistance of counsel, it need not inquire further).
-18-